Fair Employment Tribunal Northern Ireland Decisions

1.

(i)

The Tribunal, by a decision issued on 9 June 2009, unanimously held that the respondents did not discriminate against the claimant, a serving police officer, on the ground of his religious belief, or victimise him, in transferring him from Ballymena District Command Unit (DCU) to Lisnasharragh on or about 18 February 2004, and that they did not discriminate against him in placing him in a different section on his return to Ballymena on or about 6 July 2004.

The Tribunal further held, by a majority, that the respondents did not victimise the claimant on his return to Ballymena on or around 6 July 2004.

(ii)

One of the agreed issues to be determined in relation to the claimant’s claim was as follows:-

At the conclusion of the substantive hearing the parties agreed that, in the event of the claimant’s claims being dismissed, the matter would be re-listed to consider the respondents’ application for costs against the claimant.

2.

(i)

The respondents, in making an application for costs following the dismissal of the claims, relied on Rule 12 of Schedule 1 to the Fair Employment Tribunal (Rules of Procedure) Regulations (Northern Ireland) 2004, the Rules in force at the relevant time.

(ii)

Rule 12 provides:-

(iii)

The respondents, relying on Rule 12(3)(a) sought a sum in respect of costs not exceeding £10,000.

3.

(i)

All members of the Tribunal agree that no award of costs is appropriate in relation to the claimant’s allegations of religious discrimination and victimisation on his return to Ballymena in July 2004.  A minority of the Tribunal would have upheld his claim of victimisation in this respect, and the majority do not see this issue as clear cut.

(ii)

A majority of the Tribunal, while acknowledging that costs do not follow the event in Tribunal proceedings, and that the making of an award of costs is exceptional, consider that it is appropriate to make an award of costs against the claimant in respect of the allegations of discrimination, and victimisation, in respect of his transfer out of Ballymena DCU in February 2004.

There was, to our mind, no evidence of religious discrimination or victimisation.  We are completely satisfied that the claimant at all times fully understood the reason for his transfer out of Ballymena (ie a request from the Police Ombudsman’s Office) and that he did not genuinely believe that in this respect he had been discriminated against on the ground of his religious belief, or victimised.

In this regard, we refer to the decision of the Tribunal issued on 9 June 2009, and, in particular, to Paragraphs 5, 8 and 17 of that decision, which we do not consider we need to set out in full again.

In our view, in persisting in such allegations, the claimant acted unreasonably both in bringing and conducting the proceedings, and his actions in bringing the proceedings were misconceived.

We also note that on 10 March 2009, on completion of the claimant’s evidence to the Tribunal, a letter from the Crown Solicitor making these points, and headed ‘without prejudice save as to costs’ was given to the claimant.  If he had discontinued his claim at that stage the respondents would not have sought costs against him.

(iii)

A minority of the Tribunal would hold that the events leading to the claimant’s transfer out of Ballymena cannot be looked at in isolation from those relating to his transfer back in July 2004 (where she would have made a finding of victimisation).  She would not accept that, having regard to the claimant’s experiences in Ballymena DCU, he did not have a genuine belief in the merits of his claim, and considers that an award of costs is inappropriate.

4.

(i)

While the 2004 Rules do not require the Tribunal to take account of a party’s means before making an award of costs, we nonetheless think it would be unfair to disregard them.  In particular, we note that the claimant is facing a bill of around £30,000 for costs incurred by the respondents in the Court of Appeal in one of his earlier cases.  He also has an overdraft of £20,000.

(ii)

The majority consider that an award of costs against the claimant in favour of the respondents is appropriate, and in the circumstances we exercise our discretion to make an award of £1,000.